Impresa illecita e illecito d'impresa nel quadro della responsabilità degli enti da reato, con riferimento in particolare ai reati associativi.

Thesis: Illegal and illicit business within the framework of the corporate entity’s liability for the offense, with particular emphasis on criminal enterprises. In recent years, the distinction between illicit and illegal business has assumed significant importance in Italian criminal law; the point relates to the relationship between crimes and conspiracy, and the effects of sanctions on assets and particularly confiscation. Part one outlines the concept of illegal business, as it relates to the offense of criminal corporate enterprise, as written in art. 24-ter of Legislative Decree no. 231/2001, as defined by L.94 / 2009. Theoretically, the distinction is clear. Illegal business is the result of companies whose economic activity is aimed exclusively at crime. For example, considering a company that operates exclusively in drug trafficking or money laundering or fraudulent misrepresentation to obtain public subsidies, or to a company set up for the sole purpose of committing tax fraud (in particular to VAT). Such activity is akin to the Continuing Criminal Enterprise, punished by the US Code § 848. Illicit business is, by contrast, a crime committed by a company that is operating within the law. The criminal consequences for both are clear. Illegal business is a form of organized crime and normally requires the participation of all members of the company; so all of them can be subject to the confiscation of their assets. Illicit business, on the other hand, holds responsible only those people who commit the crime. For them, confiscation applies only to the product, profit or, at most, their equivalent value. However, new laws and new practices have drastically changed the parameters. The most interesting suggestions come from the analysis of criminal associations that are practiced within "legal contexts". That is the borderline between illicit and illegal organizations. Companies who practice traditional crimes tend to use intimidating methods to make profits that border on lawlessness and extortion. You can find these kinds of criminal organizations, with increasing frequency, in successful businesses with a lot of economic turnover. It’s essential to realize that within companies, there is an important distinction between corporate crime and organized crime, and article 416 of the Italian Criminal Penal Code can be applied only to organized crime. Sometimes the distinction between lawful and unlawful organizations (or business enterprises) is not so clear, especially in the field of Environmental Criminal Law and rules relating to criminal waste. These rules are aimed at entrepreneurs and not at private citizens. The analysis breaks down in two areas of investigation. On the one hand we need to define what makes an organization illegal, even looking into civil law. On the other hand, we also need to examine the rules laid out in art. 24-ter of Legislative Decree no. 231/2001. This article was incorporated by Law no.94 / 2009, and was designed to provide timely legislative action against companies who operate with the appearance of legitimacy, but in reality are connected to criminal elements. So, when corporate organizations show evidence of criminal involvement, they are practicing illegal rather than illicit associations. In these cases article 416 of the Italian Criminal Penal Code. et seq. and art. 24-ter of Legislative Decree no. 231/2001 can be applied. Article 24 -ter can also be used for a wide range of other crimes not specified in this law. This sets a dangerous precedent for all companies, because this law could be widely interpreted. The problem is that the loose interpretation makes it difficult for companies to create valid and efficient compliance programs. What is more, aspects of the law are being constantly updated. The second part of the thesis examines the conflicts that arise as a result of criminal corporate liability, especially in relation to tax fraud legislation. The lack of specifics in this legislation described in Decree 231/2001 has created a lot of problems and a serious legal debate. Some jurists wish to see the law more strictly applied. Proponents believe that the system should have better overall effectiveness in terms of the fight against tax fraud and tax evasion. Opponents fear that it would create unnecessary obstacles for companies by increasing the number of sanctions that could be brought against them. In general, the legislature's choice of excluding tax fraud from the Decree 231/2001 has been widely criticized and subject to subsequent attention from Parliament, which –in 2013- tried to include tax crimes in the Legislative Decree. Tax fraud is the trademark of organized economic crime. There is an intense need for criminal policy to strengthen the fight against tax evasion. The point is to prevent illegal tax evasion by adopting valid compliance structures and programs. After reviewing the complex debate on the inclusion of tax fraud into the Legislative Decree no. 231/2001, this theses aims to identify multiple methods by which tax fraud has an indirect impact on corporate criminal liability. a) Firstly the Legislative Decree no. 231/2001 already addresses some tax crimes, for example money laundering. b) Secondly, some links have recently been made between tax fraud and Legislative Decree no. 231/2001, for example with the introduction of seizure and confiscation taxes. Finally, the last part of the thesis makes interesting comparisons between the Italian system and corporate criminal liability in China on the one hand, and the Anglo-American model on the other hand. Chinese law provides for different types of crimes, attributable both to persons and to companies. The Chinese model has been qualified as a "social system of personalized responsibility," this expression means a system in which the company has its own will and operating methods, so its actions are not to be confused with those of individuals. Whereas in US law the rules of “diversion procedures” (deviations from the normal sequence of the criminal process before the delivery of sentencing) can also be applied to companies. They are, today, the main instrument used to fight against corporate crimes. Since the '90s, we have noticed the gradual growth of the DPA (deferred prosecution agreement) and NPA (non-prosecution agreement). Also the United Kingdom has recently introduced a specific regulation regarding corporate criminal liability